Insight
Cease and Desist Letters in Australia
22 September 2026
In short
A cease and desist letter is a formal written demand that a person or business stop conduct that is harming you — copying your brand, using your content, breaching a contract or making damaging statements. In Australia it is not a court order and carries no penalty of its own, but it puts the other side on notice and is usually the cheapest step that resolves the problem.
Next step: if you need a letter sent this week, ask for a fixed fee and we will tell you what the letter can realistically achieve before we draft it.
When a cease and desist letter is the right tool
The letter suits situations where you want the conduct to stop more than you want money, and where the other side may not have appreciated that they were doing anything wrong. The most common commercial triggers are:
- Brand and trade mark use — a competitor adopts a name, logo or tagline close to yours, or bids on your brand in a way that misleads customers.
- Copying of content or code — website copy, photographs, drawings, manuals or software taken without a licence.
- Breach of a restraint or confidentiality clause — a departed employee or contractor approaching your clients or using your material.
- Misuse of confidential information — pricing, client lists, or material shared under an NDA used for another purpose.
- Damaging or false statements — reviews or social posts that cross from opinion into a false statement of fact about your business.
- Debt collection harassment or contract breaches — conduct that needs to stop before the commercial dispute can be dealt with.
What a cease and desist letter can and cannot do
| It can | It cannot |
|---|---|
| Put the other side on formal notice of your claim | Compel anyone to do anything |
| Fix the date they knew, which affects damages and costs | Create a right you do not already have |
| Open a negotiation without starting proceedings | Replace an injunction where harm is urgent |
| Support a later platform takedown or regulator complaint | Guarantee the conduct stops |
What to include
- Who you are and what right you hold. Name the registered trade mark number, the contract and clause, the copyright work, or the duty relied on. A letter that asserts a vague "our rights" is easy to ignore.
- What the other side did. Dates, URLs, screenshots, invoice numbers. Facts, not adjectives.
- Why it is unlawful. The specific legal basis — infringement, breach of contract, misleading or deceptive conduct under section 18 of the Australian Consumer Law, breach of confidence.
- What you want. Stop the conduct, remove the material, hand back documents, confirm destruction, account for profits, or pay identified loss. Be concrete and capable of being complied with.
- A reasonable deadline. Usually seven to fourteen days.
- What happens if they do not comply. Only name steps you are genuinely prepared to take.
- Whether it is "without prejudice". Settlement discussion may be; the demand itself usually should not be. See our note on what "without prejudice" actually means.
The risk of overstating the claim
Australian law penalises threats that are not justified. Section 129 of the Trade Marks Act 1995 (Cth) and section 128 of the Patents Act 1990 (Cth) allow a person who receives an unjustified threat of infringement proceedings to sue for a declaration, an injunction and damages. A demand that misstates the law can also be misleading conduct in trade or commerce. In practice this means a letter should claim only what you can prove you own and only the remedies actually available.
If you have received one
Do not ignore it and do not reply in anger. Preserve the material and any records. Work out whether the claim is genuinely made out, whether some of it is and some of it is not, and whether the commercial cost of changing course is smaller than the cost of arguing. A measured response that narrows the dispute, without admitting liability, resolves most of these matters. If the letter threatens proceedings on a right the sender may not hold, that is worth checking before you concede anything.
What comes after the letter
If the conduct stops, record the outcome in a short written agreement — including undertakings not to repeat it — so you are not back in the same position in six months. If it does not stop, the realistic next steps are an urgent injunction, a platform or registrar takedown, a regulator complaint, or proceedings. We do not run litigation; where a matter needs a courtroom we will say so and refer you to litigators we trust, which is usually cheaper than discovering it late.
Frequently asked questions
Is a cease and desist letter legally binding in Australia?
No. A cease and desist letter is a demand, not a court order. It has no coercive force on its own. Its value is that it puts the other side on notice, creates a written record of when they learned of your claim, and often resolves the issue without litigation. Ignoring one is not itself unlawful, but it can affect costs and damages later.
Do I need a lawyer to send a cease and desist letter?
You can send one yourself. In practice a letter on a law firm's letterhead is taken more seriously and is far less likely to contain a claim you cannot support. That matters, because an overstated demand can expose you to a claim for unjustified threats or misleading conduct.
What is the difference between a cease and desist letter and a letter of demand?
A cease and desist letter asks someone to stop doing something — using your brand, copying your content, breaching a restraint, defaming you. A letter of demand usually asks for payment of money owed. The two often appear in the same letter when the conduct has also caused loss.
How long should I give someone to respond?
Seven to fourteen days is common for commercial matters. Give a shorter period only where the harm is ongoing and serious. An unreasonably short deadline undermines the letter and can look tactical if the dispute reaches a court.
What happens if the letter is ignored?
Your options depend on the underlying right: an urgent injunction to stop continuing harm, a complaint to a regulator, a takedown request to a platform or domain registrar, or proceedings for damages or an account of profits. The letter becomes evidence that the conduct continued after notice, which can increase the other side's exposure.
Can a cease and desist letter be used against me?
Yes. Under the Trade Marks Act 1995 (Cth) and the Patents Act 1990 (Cth) a person who makes unjustified threats of infringement proceedings can be sued. Overstated claims can also amount to misleading conduct. This is the main reason to have the letter reviewed before it goes out.
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